Opinion
111,642.
08-14-2015
STATE of Kansas, Appellee, v. Andrew W. PARKER, Appellant.
Appeal from Crawford District Court; Lori Ann Bolton Fleming, Judge. Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Crawford District Court; Lori Ann Bolton Fleming, Judge.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., HILL and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is Andrew W. Parker's direct appeal of his four drug crime convictions. He claims the court should have suppressed all evidence recovered from the search of his house and contends there is insufficient evidence to prove him guilty of possession of ephedrine or pseudoephedrine with intent to manufacture. Our review of the circumstances that led to the issuance of the two search warrants and how they were executed leads us to hold that the district court did not err when it denied Parker's motion to suppress. We affirm Parker's convictions.
The drug investigation begins with a statement from Parker's 8–year–old–son.
Crawford County Deputy Donald Kmiec interviewed X.S. and his mother on August 8, 2012, in Mulberry. Parker exercised periodic visitation with his son, X.S.
X.S. told Deputy Kmiec that while visiting Parker, on August 5, 2012, he had allowed X.S. “to examine and play with a glass smoking pipe, several wooden smoking pipes, and several hard plastic smoking pipes.” X.S. also noticed a wooden pipe which was “approximately 2 inches long and straight.” X.S. said this pipe was different from the corncob pipe his ex-stepfather used to smoke tobacco.
About 3 weeks earlier, on July 21, 2012, while visiting his father, X.S. had observed “Parker holding a glass pipe in his hand,” and “Parker repeatedly put the glass pipe to his mouth while it was smoking.” Parker used a lighter to light the end of the glass pipe. X.S. saw a plastic baggie containing “little yellow dots.” All of this occurred in Parker's bedroom.
Deputy Kmiec's training made him familiar with materials and the various practices of manufacturing methamphetamine. His training included courses on the detection and identification of drugs and drug paraphernalia. He had also attended a course on one-pot methamphetamine production.
Deputy Kmiec was also familiar with the practice of “smurfing,” which is a technique used by users and manufacturers of methamphetamine to sidestep the legal limits placed on the purchase of products containing ephedrine or pseudoephedrine. Smurfing is the practice of obtaining pseudoephedrine or other materials used in the manufacturing of methamphetamine from those who purchase the products legally and then exchanging the pseudoephedrine for either methamphetamine or money. Deputy Kmiec also knew of the practice of using glass pipes for smoking methamphetamine. Deputy Kmiec was also aware that when in crystal form, methamphetamine can be yellowish in color.
After the interview with X.S., Deputy Kmiec obtained Parker's pseudoephedrine purchase history records. In his affidavit submitted to obtain a search warrant, Deputy Kmiec stated that Parker had purchased pseudoephedrine four times from July 10, 2012, to August 4, 2012. He had purchased 8.4 grams but was blocked from purchasing 2.4 grams of pseudoephedrine one time during that period. Believing Parker was in possession of methamphetamine and drug paraphernalia, Deputy Kmiec obtained a search warrant to search Parker's Mulberry residence. The pseudoephedrine purchase records of Tonya Armenta, the woman Irving with Parker at his home in Mulberry, revealed that between July 6, 2012, to August 8, 2012, she had purchased pseudoephedrine five times that totaled 10.8 grams.
On the same day of his interview with X.S., at about 6 p.m., Deputy Kmiec and other officers executed the search warrant at Parker's residence on West Alfred Street in Mulberry, Kansas. Deputy Doug Morrison was one of the first officers to approach the front porch. As he approached, Armenta came out of the residence. The officers went inside to find Parker.
KBI Special Agent Darin Barnett, assigned to the Southeast Kansas Drug Enforcement Task Force of the Kansas Bureau of Investigation, assisted with the execution of the search warrant. Inside the residence, he noticed a haze and smelled a strong chemical odor. Based on his experience and training, he knew these were signs of a methamphetamine lab. Meanwhile, Parker was outside speaking to Mulberry Police Officer Craig Schropp. Parker informed Officer Schropp that he and Armenta were “cooking inside the house.” Officer Schropp immediately yelled to warn the officers to exit the house. Simultaneously, Lieutenant Danny Smith found a bottle in the bathroom that was a one-pot methamphetamine lab. The one-pot lab was taken outside to the front porch, and the home was vented in order to dissipate the fumes.
After finding the one-pot lab, Deputy Kmiec left the scene so he could obtain a second search warrant. Under the first warrant, the officers were looking for possession of methamphetamine and paraphernalia for the use of methamphetamine. They sought a second warrant because the officers were then searching for evidence of manufacturing methamphetamine. Parker and Armenta were not present when Deputy Kmiec returned with the second warrant. No items were seized during the execution of the first search warrant. Special Agent Barnett was in charge of collecting the evidence in this case. A copy of the second warrant and the custody receipt were left at the residence.
Parker asked the court to suppress all evidence obtained from the search.
At the hearing on his pretrial motion to suppress, Parker argued the search warrants were not supported by probable cause, and thus invalid. He also argued that his admissions, made during the execution of the first warrant, should be suppressed because they were obtained as a result of an invalid search warrant. At the hearing on the motion, Parker orally amended the motion to suppress by alleging improper execution of the first search warrant. Also at the hearing, Parker asked the district court to take judicial notice of a civil case file involving visitation issues between Parker and X.S.'s mother. Parker contended there was a long history between him and his son's mother, and he was concerned that this affected the child's statements.
First, the district court considered whether Parker was entitled to an evidentiary hearing on the allegations. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The court determined Parker failed to show any false statements were made in obtaining the warrants:
“[Parker] has not alleged a false statement on behalf of the affiant exists, but that the hearsay information affiant relied upon was unreliable and insufficient to support probable cause. [Parker] offered no proof, nor filed any affidavit alleging false statements contained in the search warrant affidavit. Under these circumstances, [Parker] is not entitled to a Franks hearing on this issue.”
Also, the court held it would not take judicial notice of the civil case file concerning Parker's visitation issues. It held that Parker failed to specify which documents within the file he wished the district court to consider. Without specific references to documents, the information provided to the district court was insufficient, and the district court could not find the evidence relevant to the motion.
The district court found probable cause existed to support the first search warrant. The court ruled: “[Parker] has not attacked the veracity of the affiant, and that the statements of [X.S.] were corroborated by obtaining the purchase history of pseudoephedrine for [Parker].” Furthermore, the district court found Parker did not challenge the sufficiency of the second warrant. After reviewing the affidavit and warrants, the district court found the second warrant was also supported by probable cause.
The jury found Parker guilty of manufacturing methamphetamine, possession of ephedrine or pseudoephedrine with intent to manufacture, possession of methamphetamine, and possession of marijuana. The court sentenced Parker to 158 months' imprisonment and 36 months' postrelease supervision.
Parker raises four issues on appeal. He contends the court erred when it ruled the search warrants were supported by probable cause. Next, in his view, the court should have suppressed all evidence seized due tc the improper execution of the first search warrant. For his third point, Parker contends insufficient evidence was presented at trial that would support his conviction for possession of ephedrine or pseudoephedrine with intent to manufacture. Finally, he raises a Sixth and Fourteenth Amendment violation because the sentencing judge determined his criminal history and not a jury. We will address the issues in that order.
Even though Parker failed to make a contemporaneous objection, we will address two of these issues.
There are technical requirements that must be met in order to preserve evidentiary issues for appeal. K.S.A. 60–404 generally precludes an appellate court from reviewing an evidentiary challenge unless a timely objection is made on the record “and so stated as to make clear the specific ground of objection.” State v. Bowen, 299 Kan. 339, 351, 323 P.3d 853 (2014). This can be accomplished through a standing objection. See State v. Holman, 295 Kan. 116, 127, 284 P.3d 251 (2012).
Our Supreme Court has, on three occasions, refused to strictly apply the contemporaneous-objection rule after first finding the underlying purpose for the rule has been satisfied. See, e.g., State v. Hart, 297 Kan. 494, 510–11, 301 P.3d 1279 (2013) ; State v. Spagnola, 295 Kan. 1098, 1103, 289 P.3d 68 (2012) ; State v. Breedlove, 295 Kan. 481, 490–91, 286 P.3d 1123 (2012).
We will consider the issues on the merits in this appeal because the spirit, if not the letter, of the contemporaneous objection rule was satisfied. See Spagnola, 295 Kan. at 1103. Pertinent to this case, in State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009), our Supreme Court held when a pretrial motion to suppress has been denied, the evidence must be objected to at the time it is offered during trial in order to preserve this issue for appeal. Addressing the purpose of the contemporaneous-objection rule, our Supreme Court found: “Among other advantages, this holding allows a court to rule on the evidence before trial, but after hearing how the evidence unfolds during trial, allows the court to be prepared—after timely trial objection—to reconsider its original ruling.” 289 Kan. at 270.
Parker concedes he did not object when evidence was admitted at trial. But during the trial, while Parker was cross-examining Deputy Kmiec, the State objected to his line of questioning. In an on-the-record sidebar conference, the parties argued the objection to the district court. The parties and the judge clearly admit that probable cause was being attacked by Parker:
“[STATE]: Your Honor, it appears that [Parker] wants to challenge the legality of the warrant, which has already been argued, and that is a question of law for this Court.... Therefore, I would ask the Court to find that it's not relevant, that not to allow [Parker] to attack the probable cause of the warrant as that has already been legally determined to be sufficient by this Court.
...
“[PARKER]: This Court, it still has to be ruled on if it's a question of law if the evidence presents itself and comes out at trial. A whole different kind of fact.
“THE COURT: Well, I am going to sustain the objection on the grounds that it's not relevant to find probable cause because we have covered that in our pretrial motions.”
Parker continued his cross-examination, and again, the State objected. In a second sidebar, the following transpired:
“[STATE]: Your Honor, once again, I think that this goes to the probable cause of the search warrant, which the Court has previously ruled upon. So we rely upon that.
“[PARKER]: All right. I think the facts have developed that gives the Court another reason to change the ruling.
“The Court can change the ruling in protecting the rights of the defendant.
...
“THE COURT: Well, I think [Parker] has just pointed out to the jury any items that were not found in the home that were listed in the warrant. I think that's relevant.
“What I don't find relevant is that the child's participation in the events leading up to the execution of the—strike that—not the execution—the additional search warrant. We have already made that probable cause determination.
“And I understand [Parker's] protecting the record, but we have been down that road. ” (Emphasis added.)
After a recess, there was a discussion addressing the execution of the first search warrant. In pertinent part, the following discussion occurred:
“[STATE]: And let me also just state this for the record, Your Honor. Once again, [Parker], I believe, wants to attack as to whether or not the warrants were left behind, as to whether or not the copies were left behind. The Court's already made the determination. Frankly, it's irrelevant because of—I believe [he] wants to relitigate it to the jury, and it's a matter of law that this Court has already ruled on.
“THE COURT: I don't find that the evidence is admissible to relitigate probable cause finding and everything we have addressed on the motion to suppress. It is potentially relevant with regard to the officer's credibility; what he said he did or didn't do, so I am going to allow it.”
While Parker did not object to the evidence, he did give the district court an opportunity to reconsider its original ruling. Additionally, the district court noted Parker was “protecting the record.” For these reasons, we find this issue, as well as the second issue concerning the improper execution of the first search warrant, is sufficiently preserved and we will consider both issues on their merits.
When deciding if there is probable cause we consider all of the circumstances.
In the jargon of the law, when reviewing whether an affidavit in support of a search warrant supplies probable cause, a judge must consider the totality of the circumstances presented and make a practical, common-sense decision whether a crime has been committed or is being committee: and whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Powell, 299 Kan. 690, 695, 325 P.3d 1162 (2014).
When a search warrant affidavit is challenged, the reviewing court applies a deferential standard. The standard is whether the affidavit provided a substantial basis for the magistrate's determination that there is a fair probability that evidence will be found in the place to be searched. Because the reviewing court is able to evaluate the necessarily undisputed content of an affidavit as well as the issuing magistrate, the reviewing court may perform its own evaluation of the affidavit's sufficiency under this deferential standard. State v. Hensley, 298 Kan. 422, 427–28, 313 P.3d 814 (2013).
This standard arises from our Supreme Court's recognition of the United States Supreme Court's rejection of de novo judicial reviews of affidavits used to secure search warrants. The Supreme Court wants to promote the use of search warrants, not inhibit them. This standard is found in Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In response to Gates, our Supreme Court, in State v. Hicks, 282 Kan. 599, 612–13, 147 P.3d 1076 (2006), stated that when reviewing the issuance of search warrants based solely on an affidavit,
“[o]ur inquiry is not whether we, as judges, can conclude as a matter of law that probable cause actually existed. We may conduct an independent analysis of the content of the affidavit, but we need only see enough to persuade us that there was a substantial basis for the magistrate's conclusion [finding probable cause].”
In this affidavit, Deputy Kmiec repeated what X.S. had told him. X.S. had personally seen the drug use, the paraphernalia, and the baggies containing “little yellow dots” while visiting in his father's home. The officer explained that due to his training and experience, Deputy Kmiec was able to determine X.S.'s statements were related to methamphetamine usage. Finally, Deputy Kmiec corroborated X.S.'s statements by obtaining Parker's and Armenta's recent and significant purchase history of ephedrine or pseudoephedrine.
In our view, even if there were questionable motives surrounding X.S.'s statements due to the visitation dispute between Parker and X .S.'s mother, his statements could still be considered reliable. X.S. had personal knowledge of Parker's drug use. X.S. also made his identity known and could be held accountable for any misinformation. Finally, X.S.'s statements were corroborated by Deputy Kmiec's training and experience, as well as Parker's purchase history of ephedrine or pseudoephedrine. Based on all of this information, the affidavit provided a substantial basis for the district court's probable cause determination.
There are certain actions the police must do when executing a search warrant.
Several statutes come into play at this point. K.S.A.2014 Supp. 22–2506(a) provides:
“A search warrant shall be executed within 96 hours from the time of issuance. If the warrant is executed the duplicate copy shall be left with any person from whom any things are seized or if no person is available the copy shall be left at the place from which the things were seized.”
If items are seized, K.S.A.2014 Supp. 22–2512(a) provides: “The officer seizing the property shall give a receipt to the person detained or arrested particularly describing each article of property being held and shall file a copy of such receipt with the magistrate before whom the person detained or arrested is taken.”
Finally, K.S.A. 22–2511 makes it clear that: “No search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.”
At the hearing on the motion to suppress, there was mixed testimony on whether both warrants were left at the residence. Deputy Kmiec testified both warrants were left in the kitchen. But during cross-examination, he changed his testimony. He knew with certainty that the second warrant was left, but he was not certain about the first warrant. At trial, Deputy Kmiec testified that a return was not made on the first search warrant. Special Agent Barnett testified that there was no evidence that the first search warrant was served on Parker. There was testimony that no items were seized under the authority of the first search warrant. Nonetheless, a return of the second search warrant was made along with a list of the items seized. A copy of the second warrant and the custody receipt were left at the residence.
Because no items were seized under the first warrant, the officers were not required to leave a copy of the warrant as required by K.S.A.2014 Supp. 22–2506. The officers complied with both K.S.A.2014 Supp. 22–2506 and K.S.A.2014 Supp. 22–2512 when they left a copy of the second warrant along with a custody receipt listing the items seized.
Basically, Parker argues that without proper execution of the first warrant, officers should not have had the ability to obtain and execute a second warrant. Parker claims the first warrant was never given or shown to him and the “officers used their observations from the execution of the first warrant in order to support the second warrant.” He contends “reliance on an improperly executed warrant to ultimately seize evidence that was later used against him substantially prejudiced [his] rights.” The State argues failure to leave a copy of the first search warrant is a technical irregularity and Parker was not prejudiced in any way by the technical irregularity.
This is not the first time that this has happened. In State v. Forsyth, 2 Kan.App.2d 44, 46, 574 P.2d 241 (1978), the police provided the Forsyths with a copy of the first search warrant prior to commencing their search. The Forsysths moved to suppress seized items on the grounds they were not personally served with a copy of the warrant and an inventory of the items seized. According to this court, the record revealed the Forsyths were given a copy of the second search warrant prior to the seizure of the items found in the first search warrant. It was also noted a copy of the second search warrant was placed with their personal effects at the police station; an inventory list “may have also been placed.” 2 Kan.App.2d at 46. This court held:
“The failure to give a copy of the receipt to the defendant for the items taken is a technical irregularity under K.S.A. 22–2511, and therefore the evidence seized thereunder is admissible unless the defendant demonstrates prejudice from the procedural violation. [Citations omitted.] At best, defendants can only show that a copy of the inventory was not delivered to them personally. That showing alone is insufficient to demonstrate prejudice and is a mere technical irregularity not affecting the substantial rights of the accused.”2 Kan.App.2d at 47.
Similar to Forsyth, Parker can only show he was not given a copy of the first search warrant. Parker was given a copy of the second warrant which included a custody receipt of the items seized. The lack of a copy of the first search warrant, which, according to the officers, no items were seized under, is insufficient to demonstrate this mere technical irregularity affected Parker's substantial rights.
Going further, in State v. Holloman, 240 Kan. 589, 595–96, 731 P.2d 294 (1987), a copy of the search warrant and an inventory of the items seized was given to Holloman's mother. Our Supreme Court found this procedure was in violation of K.S.A. 22–2506 and K.S.A. 22–2512. Holloman was the person from whom items were seized, and he was the person arrested; therefore, he should have been provided with the documents. The court addressed whether this technical irregularity substantially affected Holloman's rights. The court noted: “[Holloman's] argument presupposes that [he] was not aware he was a ‘suspect’ in the case and if he had been personally handed a receipt for the items seized, [Holloman] would have then realized he was a suspect.” 240 Kan. at 596. There was evidence the contents of the search warrant were read aloud to everyone in the room, including Holloman. The court held Holloman failed to demonstrate any substantial prejudice resulting from the technical irregularity. 240 Kan. at 595–96.
At the hearing on the motion to suppress, Parker testified he heard Armenta say something to the officers about asking to see a search warrant. The officer responded, “It's in the fucking car.” Parker also stated he asked to see the first search warrant, which he was never given. However, as in Holloman, Parker knew he was a suspect. Parker made statements about “cooking,” he was in handcuffs, and he asked Chief Tim Pelican, “[I]s there anything you can do for me? This was going to be our last time.” While the contents of the search warrant were not read aloud to Parker, based on the above, it was clear Parker knew he was a suspect and a search of his home was being conducted in his presence.
While the officers failed to provide a copy of the first search warrant, Parker has failed to demonstrate any substantial prejudice resulting from this technical irregularity. The district court did not err by denying Parker's motion to suppress based on this issue.
The State presented sufficient evidence of possession.
Parker argues the State failed to present sufficient evidence that he possessed ephedrine or pseudoephedrine with intent to manufacture a controlled substance. He claims that the State did not prove the ephedrine or pseudoephedrine found at the house “was intended to be used in the future for the manufacture of methamphetamine.” In his view, the element of intent to manufacture was not proved because the process of manufacturing had already occurred.
When the sufficiency of the evidence is challenged in a criminal case, this court reviews all the evidence in the light most favorable to the prosecution, and must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In determining whether there is sufficient evidence to support a conviction, the appellate courts generally will not reweigh the evidence or the credibility of witnesses. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt and that a guilty verdict be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983).
We point to the obvious. K.S.A.2014 Supp. 21–5709(a) provides: “It shall be unlawful for any person to possess ephedrine, pseudoephedrine, red phosphorous, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phenylpropanolamine, or their salts, isomers or salts of isomers with an intent to use the product to manufacture a controlled substance.”
Disregarding Parker's acknowledgment of the presence of ephedrine or pseudoephedrine in the already initiated/completed manufacturing process, the jury heard additional evidence to support the element of this crime. First, the jury heard evidence the officers located a one-pot lab inside the residence. Additionally, there was testimony Parker confessed to “cooking.” Second, Special Agent Barnett explained the process of manufacturing methamphetamine using a one-pot laboratory. Special Agent Barnett testified, “Well, first, you have to gain all the chemicals; pseudoephedrine, which comes from your nasal decongestant tabs that have ephedrine, pseudoephedrine in them.... With the pseudoephedrine, they usually ground (sic) those up into a—almost a powderytype form, put them in the container.”
Special Agent Barnett was in charge of collecting the evidence. He testified he noticed a haze and smelled a strong chemical odor in the residence. Based on his experience, this was indicative of a methamphetamine lab. He also observed a one-pot lab located in the bathroom of the residence.
The following evidence was discovered: several bottles with binary liquids associated with the manufacturing of methamphetamine; cold packs with ammonium nitrate, a necessary component to a one-pot lab; and the one-pot lab, with test results indicating the presence of a medium petroleum distillate, ammonia, and ephedrine or pseudoephedrine. Special Agent Barnett testified the lab results indicated the beginning stages of the manufacture of methamphetamine.
The following evidence was also presented to the jury:
• A plastic bottle which contained a clear liquid; lab results indicated a medium petroleum distillate, methamphetamine, and ephedrine or pseudoephedrine were present;
• a spoon with a cotton piece that contained methamphetamine and ephedrine or pseudoephedrine ;
• a glass jar with wet coffee filters which contained a medium petroleum distillate and lithium, along with methamphetamine and ephedrine or pseudoephedrine ;
• Drano which contained sodium hydroxide, a necessary chemical for the manufacture of methamphetamine;
• a sample bottle which contained a strong acid; “acid is used to salt out the final solution, getting to the methamphetamine”;
• a 2–liter bottle with “a two-layered liquid half full” which contained a medium petroleum distillate that was strongly acidic; and
• another 2–liter bottle with liquid that contained a medium petroleum distillate, methamphetamine, and ephedrine or pseudoephedrine ; Special Agent Barnett testified this indicated the manufacturing process was completed.
Viewing all of this in a light most favorable to the prosecution, we hold the State provided sufficient evidence to prove beyond a reasonable doubt Parker possessed ephedrine or pseudoephedrine with the intent to manufacture.
For his final point, Parker contends the district court violated his Sixth and Fourteenth Amendment rights as interpreted Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when the judge determined his criminal history and it was not proved beyond a reasonable doubt to the jury. The Kansas Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). We see no indication that our Supreme Court is departing from Ivory, so we must follow this controlling precedent. The sentencing judge did not violate Parker's rights.
Affirmed.